H v Police HC Blenheim CRI 2010-406-1
[2010] NZHC 549
•27 April 2010
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND
BLENHEIM REGISTRY
CRI 2010-406-000001
BETWEEN H
Appellant
AND NEW ZEALAND POLICE
Respondent
Hearing: 27 April 2010
Counsel: J G Holdaway for the Appellant
H J Boyd-Wilson for the Respondent
Judgment: 27 April 2010
JUDGMENT OF WILD J
[ 1 ] This is another “sustained loss of traction” appeal. The appeal is against a
conviction entered by Judge Barry in the District Court at Blenheim on 11 March. The Judge found that, in breach of s 22A(3) Land Transport Act 1988, Mr H had without reasonable excuse operated a motor vehicle on a road in a manner that caused the vehicle to undergo sustained loss of transaction.
The facts are not in dispute. What is contested is whether they constitute the offence of which Mr H was convicted.
At about 10.30pm on Saturday 24 October 2009 two constables were on the street outside Marlborough Boys’ College in Blenheim. They heard the tyres of a car squealing. One of the constables stepped out onto the road and saw a car coming towards him. He signalled the car to stop. The constables spoke to the driver and passenger and subsequently arrested the driver and impounded the car.
H V NEW ZEALAND POLICE HC BLE CRI 2010-406-000001 27 April 2010
Both the Police and the defence took photographs of tyre marks that one of the constables noticed on the road. Under cross-examination, that constable accepted that it was unlikely the appellant’s car had made those marks. I therefore discard those tyre marks as irrelevant.
The appellant’s explanation was that the accelerator on the Ford Laser car owned by his father which he was driving had jammed as he approached the intersection of Stephenson and Scott Streets. He had turned the ignition off. Because the starter motor on the car was faulty, he and his passenger had then jump-started the car. As the accelerator was still jammed, the engine revved up immediately. As the car was in first gear, the wheels spun for a couple of seconds until Mr H engaged the clutch, and stamped on the accelerator successfully freeing it.
Mr H was aware of an intermittent fault with the accelerator cable on the car; it had occurred about three times over the previous six weeks.
Judge Barry outlined these facts in his decision. He noted that he had accepted in evidence a statement dated 2 November 2009 from Speedworld charging $90 with this description:
Ford Laser Reg PE4809. To fix a sticky accelerator. Problem found to be frayed cable, replaced with new cable.
These are the important points in the Judge’s decision:
·He found there was a sustained loss of traction. This finding appears to be based on the Judge’s acceptance of the police officers’ evidence:
[5] ... that they saw a vehicle undergoing loss of traction
and that while this was perhaps 2-3 seconds it could well amount to a sustained loss of traction.
·Because Mr H was driving a car that he knew had an accelerator predisposed to jamming in a way that would result in a loss of traction, that meant that Mr H had consciously allowed that loss of traction to occur.
• The jamming accelerator did not amount to a reasonable excuse for
causing the car to undergo sustained loss of traction.
• As Mr H was driving his car intentionally knowing of its
accelerator fault and the likely consequence:
[11] ... the inference that arises from that is the fact of
driving with that knowledge means that Mr H was intentionally operating that motor vehicle on that road in a manner that caused the vehicle to undergo sustained loss of traction. The charge is proved accordingly. ...
I consider Judge Barry was wrong to find that what occurred here constituted
an offence in terms of s 22A(3). The Judge relied on Whitburn v Police HC Whangarei CRN2088020930, 26 June 2004 in which Laurenson J held that the word “sustained” in s 22A(3) was used:
[21] ... in the sense that the state of loss of traction having occurred is
thereafter kept in being or maintained consciously for a period of time, the length of which is not necessarily relevant. In other words, if the dangerous situation, which the Act seeks to prevent, can be proved by objective evidence to have been caused by a driver consciously allowing or causing a loss of traction to continue, then the offence is proved.
[ 10] I accept Mr Holdaway’s submission that Mr H stamped on the accelerator in an effort to un jam the accelerator and stop the wheels spinning. And he successfully did that after 2-3 seconds. I agree that that is the antithesis of Mr H intentionally causing a sustained loss of traction.
[ 11 ] More generally, I am sure that what occurred here was not within the “mischief” s 22A(3) was intended to prevent. The section was inserted into the Land Transport Act 1998 by the Land Transport (Unauthorised Street and Drag Racing) Amendment Act 2003. The explanatory note to the Bill stated that its purpose was to:
... include in that Act additional provisions aimed at combating the problem of unauthorised street racing, drag racing, wheel spinning, and other stunts involving motor vehicles on roads, and the spillage of lubricants on roads without reasonable excuse ...
[ 12] The Select Committee’s report makes it clear that “wheel spinning” was intended to prevent “dangerous stunts such as ‘burnouts’ and ‘donuts’”. That the focus of the legislation was unauthorised street racing further emerged during the second reading of the Bill, when the Minister told Parliament that a “street racing offence” meant either:
a)Operating a vehicle in a race, or exhibition of speed or acceleration; or
b)Operating a vehicle in a manner that caused it to undergo sustained loss of traction.
[13] Consistent with this, all the decisions of this Court that I have been referred to deal with a driver engaged in street racing or, in one case, a driver intentionally driving off down a street “fishtailing” and spinning the car’s tyres in a fit of anger. In the “street racing” category are Whitburn, McKinley v Police HC Hamilton CRI2006-419-22, 24 May 2006; Thornton v Police HC Gisborne CRI-2008-416-0013, 15 December 2008; Wells v Police HC Hamilton CRI-2009-419-000010, 20 July 2009. The “fishtailing” case is Hoeta v Police HC Auckland CRI-2006-404-000176, 28 July 2006.
[ 14] Mr Holdaway made other submissions in support of Mr H ’s appeal. For example, he submitted that the probability of the accelerator sticking was so very low that it could not be said that it was foreseeable. He referred to observations of Lord Scarman in R v Hancock [1986] 1 All ER 641 at 649 to the effect that, the greater the probability of a consequence, the more likely it is that it was foreseen and thus also intended. Suffice it to say that I accept Mr Holdaway’s submission that Mr H did not drive the car intending that its accelerator stick. And I accept also that Mr H stamped on the accelerator with the intention of stopping the car’s wheels spinning, not with the intention of causing them to spin, let alone in a sustained way.
[15] In the result, I allow this appeal. I quash the conviction. The fine and Court costs imposed by the Judge are also set aside.
Solicitors:
Crown Law Office, Wellington for Respondent
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